An Overview of the Human Rights Jurisprudence Underpinning the Test for Prima Facie Discrimination

Prepared for the Council of Canadians with Disabilities CURA "Disabling Poverty/Enabling Citizenship" by Nathan Irving (LL.B. student, University of Manitoba), September 6, 2009

I. Introduction

This report was prepared as a backgrounder for a larger future research project that intends to explore the impact of the human rights principle of the "duty to accommodate" on persons with disabilities. It is one of five reports prepared for further research purposes.

It highlights the key human rights cases that have contributed to the current test for establishing prima facie discrimination under human rights legislation. It further assesses how the test for prima facie discrimination has impacted on the rights claims of persons with disabilities.

II. The Test Affirmed by Meiorin and Grismer

A complainant alleging discrimination pursuant to a human rights statute has the initial burden of establishing, on a balance of probabilities, that the respondent's standard or course of conduct is prima facie discriminatory. Questions of accommodation do not arise until after the complainant has satisfied this initial test. It is only after prima facie discrimination has been established that the onus shifts to the respondent to justify the impugned standard or conduct by proving, among other things, that the complainant has been accommodated to the point of undue hardship.

While the validity of this approach is not a contentious issue, it is not always apparent upon reading a judgement that a decision maker has applied this framework. Some adjudicators spend little time at the initial stage of the analysis; having found adverse treatment on a prohibited ground, for example, some are content to move swiftly into the second stage of the analysis where, more often than not, most of the action takes place. Indeed, this was the approach taken by the Supreme Court of Canada in two cases credited with establishing the modern-day framework for statutory human rights adjudication, Meiorin[1] and Grismer.[2] In Meiorin, the extent of the Court's analysis at the prima facie discrimination stage is captured in the following passage: "The arbitrator held that, because of their generally lower aerobic capacity, most women are adversely affected by the high aerobic standard…Ms. Meiorin has therefore demonstrated that the aerobic standard is prima facie discriminatory…"[3] In Grismer, the Court simply held that "Mr. Grismer established a prima facie case of discrimination under the Act by showing that he was denied a license that was available to others, and that the denial was made on the basis of a physical disability…"[4] Clearly, in both Meiorin and Grismer, the Court was satisfied that a prima facie case of discrimination had been established on the basis of proof of adverse treatment owing to a prohibited ground.

III. The Aftermath of Meiorin and Grismer

In light of decisions which have followed Meiorin and Grismer, what is required of complainants at the initial stage of the analysis is now unclear. A myriad of tests for prima facie discrimination has emerged, and there is great disagreement among decision makers as to their applicability. This is causing problems for complainants, who are left unclear as to what elements they must prove to satisfy their initial burden. Moreover, as will be seen, some of the tests being applied are imposing heavier burdens for complainants to satisfy than the test of adverse treatment on a prohibited ground.

The purpose of this report is to outline some of the tests that are being applied at the initial stage of the discrimination analysis so as to provide a sense of where the law currently stands on this issue. In so doing, I describe some of the newly erected barriers which complainants now face in proving their cases. I also highlight cases wherein decision makers have declined to impose additional burdens on complainants.

In preparing this report, I reviewed all post-Meiorin and post-Grismer court cases which involved statutory human rights claims and at least some analysis of discrimination and/or the duty to accommodate, totalling 118 court decisions.[5] In addition, I reviewed tribunal and labour arbitration cases for the years 2008 and 2009 which involved both allegations of discrimination on the basis of disability and at least some analysis of discrimination and/or the duty to accommodate, totalling eighty-one tribunal and fifty-five arbitral decisions.[6]

Two caveats are in order. First, many decision makers were less than forthcoming about the tests which they employed in determining whether prima facie discrimination had been established. Many adjudicators skipped the first stage of the analysis and proceeded to dismiss the claim for reasons associated with the accommodation analysis.[7] Other decision makers simply agreed with complainants that prima facie discrimination had been established without providing reasons[8] This has made it impossible to identify with any kind of precision the proportion of cases which applied each of the tests.

Second, the analysis in this report is limited by the fact that when reviewing each of the cases, I did not simultaneously examine the applicable human rights legislation. This limits the analysis because, although not always followed, "[t]he evidentiary burden associated with the prima facie case is discerned in each case by reference first to the wording of the enabling statute."[9] Because the language of the statutes varies between jurisdictions, it may be beneficial for researchers in the future to explore the interplay between the tests applied in the cases and the language employed in the statutes. I should point out, however, that variance in language alone cannot account for the inconsistent application of tests; in some cases, dissenting or concurring judgments were written because of disagreement among the decision makers about which of the tests to apply.[10]

It should also be noted that a number of decision makers rejected the use of formulaic tests in deciding whether prima facie discrimination had been established in certain circumstances. In these instances, decision makers relied solely on the wording of the applicable human rights statute to decide the matter. For instance, in Nixon,[11] the Court noted that "[t]he Tribunal's findings…that the Society, for a prohibited reason, denied Ms. Nixon a service customarily available to the public and refused her employment are, by definition, findings of discrimination because the Legislature has said that those behaviours are discrimination."[12] In the same way, a number of other decision makers emphasized that a refusal to employ or continue to employ (i.e. terminate) is, by definition, discriminatory.[13]

The most prevalent test of prima facie discrimination applied in the cases was some variant of the following three-step test:

1. The complainant had a disability (or perceived disability);
2. The complainant suffered adverse treatment;
3. It is reasonable to infer from the evidence that her disability (or perceived disability) was a factor in the adverse treatment.[14]

This test is arguably the closest in substance to that which was applied (but not expressly stated) in Meiorin and Grismer. Recall that discrimination was found in each of these cases on the basis that the complainant was treated adversely on the basis of a prohibited ground.

In some cases, decision makers augmented this "traditional" three-step test with additional criteria. For instance, in a handful of cases, decision makers required complainants to prove that the respondents were aware, or ought reasonably to have been aware, of the disability at the time of the impugned action.[15] In at least one of the cases I reviewed, this additional requirement was detrimental to the complainant's claim.[16] Not all decision makers, however, accepted that the complainant should have to carry this evidentiary burden, and at least one decision maker explicitly rejected this additional requirement.[17]

The three-step test was also augmented in some cases by a requirement that discrimination in the purposive or substantive sense be established.[18]

A handful of adjudicators of cases in the employment context applied a four-step test to determine whether the complainant made out a case of prima facie discrimination. The four requirements of this test, with slight variations in language from case to case, were as follows:

1. The complainant had a disability (or perceived disability)
2. The disability affected or was perceived to affect her work performance
3. The complainant was treated adversely
4. It is reasonable to infer from the evidence that her disability (or perceived disability) was a factor in the adverse treatment.[19]

Some decision makers adapted this test in considering whether discipline should be mitigated for an employee whose misconduct was related to an addiction disability. More specifically, when it was shown that an addiction had a nexus with misconduct for which the employee was disciplined, a prima facie case of discrimination was found.[20] It should be noted, however, that not all decision makers adopted this test when assessing whether accommodation of an employee with an addiction disability was warranted; a drastically different approach was recently taken by the British Columbia Court of Appeal.[21]

IV. Importing S. 15 Charter analysis into Human Rights Jurisprudence

The tests outlined above were all developed within the statutory human rights context. By contrast, other tests have been imported into this context from the jurisprudence developed in equality rights litigation pursuant to the Charter.[22] For instance, in a couple of cases, decision makers adopted the test in Andrews[23] to determine whether the complainant established prima facie discrimination.[24] In Andrews, discrimination was defined as

… a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.[25]

More commonly, however, statutory human rights adjudicators applied the analytical framework set out by the Supreme Court of Canada in its decision in Law.[26] In a nutshell, this approach requires complainants to prove not only that they have been subject to adverse treatment on a prohibited ground, but also that such treatment resulted in a violation of their human dignity in light of a number of contextual factors. The importation of this test into the statutory human rights context has been heavily criticized by academics and equality rights advocates because of its potential to elevate the burden on complainants.[27] Leaving aside the substance of this critique, the extent to which the Law framework has been applied by adjudicators in statutory human rights cases and the impact that it has had on the initial stage of the discrimination analysis will now be discussed.

In the employment context, four of the court cases which I reviewed involved a direct application of Law at the initial stage of the discrimination analysis.[28] Although the complainants in three of these cases litigated successful claims, it is worrisome that the remaining case was defeated as a direct result of the application of the Law test.[29] In essence, the claim failed because the Court determined that the impugned differential treatment did not undermine human dignity. Other courts deciding employment cases mentioned the Law analysis without directly applying it,[30] while others outright rejected its application in the statutory human rights context or at least in the case at hand.[31] Interestingly, I found no references to the Law test in any of the employment-related tribunal or arbitral decisions. Thus, complainants may have more obstacles to overcome as their respective cases ascend the judicial hierarchy.

The Law decision played a much more prominent role in the service cases. In six of the twenty-eight court cases reviewed, the courts directly applied the Law test to determine whether complainants had established a prima facie case of discrimination.[32] One of these cases was defeated after the court concluded that substantive discrimination had not been made out in light of the contextual factors.[33] In another decision, had the court not rejected the claim on one ground, it would have found no prima facie discrimination for lack of a violation of human dignity.[34] A number of other courts adjudicating service cases expressly rejected the application of the Law test in the statutory human rights context or, at least, in the particular case before them.[35] Instead of applying tests developed in the constitutional context, these courts applied the traditional test for prima facie discrimination in the statutory human rights context, namely proof of adverse treatment on the basis of a prohibited ground.

As in the employment cases, not one tribunal deciding a service case directly applied the Law test to determine whether prima facie discrimination had been proven. While one tribunal did consider the contextual factors in deciding whether discrimination in a substantive sense had been proven, the tribunal openly rejected the formal Law analysis.[36] In the end, the contextual factors only strengthened the adjudicator's conclusion that discrimination had been established.

The manner in which Law is being interpreted and applied may shift in the wake of a recent Supreme Court of Canada decision, R. v. Kapp.[37] Consider the following excerpt taken from a 2009 decision of the Alberta Court of Queen's Bench:

The test in Law has been applied by the Alberta Court of Appeal in numerous cases…The Supreme Court in Kapp, however, cautioned against an overly legalistic application of the Law test and clarified the proper application of the Law test (at para. 24):

Law does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrews and developed in numerous subsequent decisions. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of s. 15 identified in Andrews - combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping.[38]

To summarize, after a comparator group has been identified, the requirements for discrimination are:

1. there must be a distinction based on an enumerated or analogous ground, and
2. the distinction must create a disadvantage by perpetuating prejudice or stereotyping.

Kapp may indeed help to relieve complainants of an overly onerous evidentiary burden being applied by some adjudicators; however, the language employed in the passage above highlights an obstacle which is becoming increasingly problematic for rights claimants. This obstacle will be discussed in some detail in due course.

One final word is in order about the impact of the Charter. The importation of Charter jurisprudence in the statutory context has been depicted, thus far, as a negative development. But in truth, as some cases reveal, it has not been all bad for complainants. For instance, two Charter cases, Eldridge[39] and Eaton,[40] have been instrumental in promoting awareness that equality is not always achieved by same treatment, but rather it often requires that true differences are taken into account and accommodated so as to render society inclusive and accessible. Consider the following taken from a 2000 Federal Court decision:

There is another reason for non-interference by the Court. Assuming the Attorney General was correct in his argument the MLAT was not discriminatory because it truly measured a person's foreign language learning abilities, the Attorney General cannot succeed. Eldridge and Eaton, supra, teach us that discrimination can arise when:

1. The disability is ignored and forces the individual to sink or swim in the mainstream; and
2. It is not necessary for a finding of adverse effects suffered by a person to arise from the imposition of a burden not faced by the mainstream population but rather to insure they benefit equally from a service.[41]

The lessons of Eldridge and Eaton are, however, often forgotten or ignored. In 2007, a minority of the Supreme Court of Canada issued a concurring judgment which ignored the lessons of Eldridge and Eaton; it is now causing huge obstacles for human rights claimants seeking accommodation rather than equal treatment. The case was McGill,[42] and the concurring judgment was penned by Justice Abella. Her holding is captured in the following two paragraphs:

…there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden…
…
There is no need to justify what is not, prima facie, discriminatory. Unlike Deschamps J., then, the issue for me is not whether the employer has made out the justification defence of having reasonably accommodated the claimant, but whether the claimant has satisfied the threshold onus of demonstrating that there is prima facie discrimination, namely, that she has been disadvantaged by the employer's conduct based on stereotypical or arbitrary assumptions about persons with disabilities, thereby shifting the onus to the employer to justify the conduct [emphasis added].[43]

Despite being only a concurring judgment, and despite flying in the face of previous Supreme Court of Canada jurisprudence embracing substantive equality, many courts have applied the above passage to shut down claims at the initial stage of the discrimination analysis. For example, in Baum v. Calgary,[44] the Alberta Court of Queen's Bench stated as follows:

In order for the complainant to be successful with these complaints as prima facie discrimination based on disability, the Panel had to be, and now this Court in review, has to be satisfied that the alleged underemployment, unmodified position etc. was based on 'attributed characteristics' as opposed to 'actual abilities based on the individual's own merits and capacities' or 'that the employer's conduct is based on stereotypical or arbitrary assumptions about persons with disabilities' (to paraphrase the test in McGill).[45]

The essence of Justice Abella's concurring judgment in McGill was cited with approval by at least seven courts[46] and one tribunal[47] in employment cases. Ultimately, all of these claims were defeated.[48] Interestingly, Justice Abella's concurring judgment was not cited by any courts or tribunals in the service cases which I reviewed. However, this is not to say that the requirement of arbitrariness or stereotyping has not posed problems in these cases. In fact, a couple of courts and at least one tribunal have emphasized the Kapp passage reproduced earlier in this report.[49] In keeping with this passage, the Ontario Superior Court of Justice in Tranchemontagne proposed a new defense for respondents in certain cases, namely, proof that a distinction does not create a disadvantage by perpetuating prejudice or stereotyping.[50]

Not all decision makers were convinced that Justice Abella's concurring judgment marked a change in the law on discrimination. Some emphasized that while it is a Supreme Court judgment and hence deserving of respect, it is not a majority decision.[51] Furthermore, a handful of adjudicators cited Eaton as authority for the proposition that not all forms of discrimination arise from stereotypical or arbitrary assumptions. One adjudicator, after reminding readers that Justice Abella's judgment was a minority decision, reproduced a lengthy passage from Eaton that emphasized accommodation of true abilities as a purpose of equality legislation, which is of equal importance to combating stereotyping and arbitrary assumptions.[52]

An additional obstacle which some rights claimants in employment cases encountered is revealed in the following passage taken from a 1999 decision of the Saskatchewan Court of Queen's Bench:

…the Board has, in my view, failed to give effect to a distinction that must be drawn between the duty imposed on employers to accommodate differences in order to facilitate equal access to or participation in the workplace for individuals and groups who may be excluded by reason of sex, religion or disability, for example, and the prohibition against discriminatory disparate treatment in relation to compensatory benefits provided for work performed.[53]

In some cases, this distinction was applied so as to preclude findings of prima facie discrimination when disability-related absences resulted in a denial of various types of compensation. Consider the following, taken from a 2003 decision of the British Columbia Supreme Court:

The contractual arrangements in issue before the court do not discriminate on the basis of disability. The contractual arrangements provide for compensation in exchange for work. When not at work there is no payment for services not provided due to any reason including disability… The right to equal treatment without discrimination with respect to employment does not include the provision of pay when no work is performed…
…
It is not prohibited discrimination to distinguish for the purposes of compensation between workers who are providing services and those who are not: Ontario Nurses' Assn. at 10 and Real Canadian Superstore at paras 15 - 19.[54]

This kind of reasoning was used by arbitrators to defeat four of the grievances which I reviewed; however, it was not always clear in these cases whether this particular issue was considered at the initial stage of the discrimination analysis or at the duty to accommodate stage of the analysis.[55]

In other employment cases, decision makers applied considerations that properly fall within the purview of the duty to accommodate analysis to defeat claims at the initial prima facie stage. In one egregious example, after citing Hydro-Québec[56] as authority for the proposition that it is not discriminatory to dismiss an employee who has no foreseeable prospect of returning to work, the decision maker went on to state that this meant that the employer, in turn, had no case to meet.[57] In at least two cases, decision makers held that when discrimination is alleged in a "course of dealings," if the respondent provided a reasonable accommodation, then no adverse treatment can be found that precludes any need for the respondent to consider further accommodations short of undue hardship.[58]

V. Conclusions Regarding Disability Claims

In conclusion, what is required of complainants at the prima facie stage of the discrimination analysis is unsettled, complex, and often quite onerous. While some adjudicators have imposed high standards and heavy burdens upon complainants, others have been much less demanding at the first stage of the analysis; indeed, many have outright rejected the imposition of new barriers to successful rights claims.

• [1] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257 [Meiorin].
• [2] British Columbia (Superintendant of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129 [Grismer].
• [3] Meiorin, supra note 1 at para. 69.
• [4] Grismer, supra note 2 at para. 23.
• [5] This statement is qualified by the fact that I only reviewed the highest court level decision for each case
• [6] I did not review decisions with regard to preliminary motions, including motions to dismiss.
• [7] See e.g. Saucier v. Smart Lazer Grafix, 2009 HRTO 1053 CHRR Doc. 09-1472 [Saucier].
• [8] See e.g. Canada (Attorney General) v. Irvine (No. 2), 2005 FC 122, 268 F.T.R. 201, CHRR Doc. 05-798 [Irvine].
• [9] Leslie A. Reaume, "Postcards from O'Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter" in Fay Faraday, Margaret Denike, & M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law, 2006) [Reaume].
• [10] See e.g. British Columbia Government and Service Empoyees' Union v. British Columbia (Public Service Employee Relations Commission), 2005 BCCA 129, 251 D.L.R. (4th) 73 [British Columbia].
• [11] Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601, 262 D.L.R. (4th) 360 [Nixon].
• [12] Ibid. at para. 33.
• [13] See e.g. Quattroci v. Boz Electric Supply Ltd., (2009) CHRR Doc. 09-1512, 2009 HRTO 1082 [Quattroci].
• [14] See e.g. Mantovich v. Candu Glass Inc. (No. 6), 2009 BCHRT 145, (2009) CHRR Doc. 09-0601 [Mantovich].
• [15] See e.g. Wyse v. Coastal Wood Industries Ltd., 2009 BCHRT 180, (2009) CHRR Doc. 09-0808 [Wyse].
• [16] See Yee v. West Telemarketing Canada, [2008] B.C.H.R.T.D. No. 119 [Yee]. Although not explicitly mentioned by the adjudicator, the 4th criteria played a significant role in the determination of whether the duty to accommodate was ever triggered.
• [17] See Ottawa (City) v. Ottawa Carleton Public Employees Union, Local 503 (Attendance Improvement Grievance), [2008] O.L.A.A. No. 207 [Ottawa-Carleton].
• [18] See e.g. Vasil v. 528716 B.C. Ltd. IN THE MATTER OF the Human Rights Code R.S.B.C. 1996, c. 210 (as amended) AND IN THE MATTER OF a complaint before the British Columbia Human Rights Tribunal Between Martin Vasil, Complainant, and 528716 BC Ltd. and Rawn Mongovius, Respondents, [2009] B.C.H.R.T.D. No. 117 [Vasil].
• [19] See e.g. Senyk v. WFG Agency Network (B.C.) Inc. (No. 2), 2008 BCHRT 376, (2008), 64 C.H.R.R. D/245 [Senyk].
• [20] See e.g. Legal Aid Lawyers Assn. v. Manitoba (Fawcett Grievance), [2009] M.G.A.D. No. 6 [Fawcett].
• [21] See British Columbia (Public Service Agency) v. B.C.G.E.U., 2008 BCCA 357, 63 C.H.R.R. D/1 at para. 15 [Gooding] where the majority of the Court concluded "[That the complainant's] conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer's decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct."
• [22] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.)., 1982, c. 11 [Charter].
• [23] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews].
• [24] See e.g. 409205 Alberta Ltd. v. Alberta (Human Rights and Citizenship Comm.), 2002 ABQB 681, 44 C.H.R.R. D/260 [409205].
• [25] Andrews, supra note 23 at 174.
• [26] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law].
• [27] See e.g. Reaume, supra note at 9.
• [28] See British Columbia v. Hutchinson (No. 2), 2005 BCSC 1421, 54 C.H.R.R. D/468 [Hutchinson]; Saskatchewan (Dept. Of Finance) v. Saskatchewan (Human Rights Comm.), 2004 SKCA 34, 50 C.H.R.R. D/457 [Saskatchewan]; Ontario Secondary School Teachers' Federation v. Upper Canada District School Board, [2005] O.J. No. 4057 (Ont. Sup. Ct.) [Ontario Secondary]; and Mis. v. Alberta (Human Rights and Citizenship Commission), 2002 ABQB 570, [2003] 4 W.W.R. 173 [Mis].
• [29] See Ontario Secondary, ibid.
• [30] See e.g. Walsh v. Mobil Oil Canada, 2008 ABCA 268, 296 D.L.R. (4th) 178 [Walsh].
• [31] See Great Blue Heron Charity Casino v. Seguin, [2008] O.J. No. 3472 (Ont. Sup. Ct.) [Great Blue]; Sketchley v. Canada (Attorney General), 2005 FCA 404, 263 D.L.R. (4th) 113 [Sketchley]; and Nixon, supra note 11.
• [32] Hutchinson, supra note 28; Ontario (Attorney General) v. Ontario (Human Rights Comm.) (2007), 62 C.H.R.R. D/315 (Ont. Div. Ct.)[Ontario]; Van der Smit v. Alberta (Human Rights and Citizenship Comm.), 2009 ABQB 121, CHRR Doc. 09-0522 [Van der Smit]; Eagleson Co-Operative Homes, Inc. v. Theberge (2006), 274 D.L.R. (4th) 359 (Ont. Sup. Ct.) [Eagleson]; Alberta (Minister of Human Resources and Employment) v. Alberta (Human Rights, Citizenship and Multiculturalism Commission), 2006 ABCA 235, 273 D.L.R. (4th) 116 [Alberta]; and Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685, 217 D.L.R. (4th) 341 [Gwinner].
• [33] Alberta, ibid.
• [34] Ontario, supra note 32.
• [35] Canada (Human Rights Comm.) v. M.N.R., 2003 FC 1280, 49 C.H.R.R. D/38; Ontario (Director, Disability Support Program) v. Tranchemontagne, [2009] O.J. No. 1613 (Ont. Sup. Ct.) [Tranchemontagne]; Manitoba High Schools Athletic Association Inc. v. Pasternak, 2008 MBQB 24, 10 W.W.R. 729 [Pasternak]; and Nixon, supra note 11.
• [36] See J. and J. on behalf of R. v. British Columbia (Children and Family Development) (No. 2), 2009 BCHRT 61, (2009) CHRR Doc. 09-0232 [J. and J.].
• [37] R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 [Kapp].
• [38] Van der Smit, supra note 32 at paras. 60-62.
• [39] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 264 [Eldridge].
• [40] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 [Eaton].
• [41] Canada (Attorney General) v. Green (2000), 38 C.H.R.R. D/1 (F.C.T.D.) at paras. 121-122 [Green].
• [42] McGill University Health Centre v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, 59 C.H.R.R. D/259 [McGill].
• [43] Ibid. at paras. 49 & 53.
• [44] Baum v. Calgary, 2008 ABQB 791, CHRR Doc. 08-1134 [Baum].
• [45] Ibid. at para. 46.
• [46] Honda Canada Inc. v. Keays, 2008 SCC 39, 63 C.H.R.R. D/247 at para. 71 [Honda]; Gooding, supra note 21; Yukon (Human Rights Comm.) v. Yukon, 2009 YKSC 39, CHRR Doc. 09-1011 [Yukon]; Coast Mountain Bus Co. v. C.A.W., Local 111, 2009 BCSC 396 [Coast Mountain], CHRR Doc. 09-0617; International Forest Products Ltd. v. Sandhu, 2008 BCCA 204, CHRR Doc. 08-519 [Sandhu]; Baum, supra note 44; and Corbiere v. Wikwemikong Tribal Police Services Board, 2007 FCA 97, 361 N.R. 69 [Corbiere].
• [47] Mills v. J.E. Culp Transport Inc., 2009 CHRT 17, (2009) CHRR Doc. 09-0928 [Mills].
• [48] In Sandhu, supra note 46, however, a prima facie case of discrimination was established in spite of the arbitrariness/stereotyping requirement.
• [49] See Van der Smit, supra at note 32; Tranchemontagne, supra note 35; and Zavadsky (Litigation Guardian of) v. Ontario (Minister of Education), [2009] O.H.R.T.D. No. 732 [Zavadsky].
• [50] Tranchemontagne, Ibid. at para. 105.
• [51] See Kerr v. Boehringer Ingelheim (Canada) Ltd. (No. 4), 2009 BCHRT 196, (2009) CHRR Doc. 09-0976 [Kerr]; and Cassidy v. Emergency and Health Services Comm. (No. 2), 2008 BCHRT 125, 62 C.H.R.R. D/459 [Cassidy].
• [52] Kerr, ibid. at paras. 66-67.
• [53] Real Canadian Superstore v. United Food and Commercial Workers, Local 1400, 1999 SKQB 196, 182 D.L.R. (4th) 223 [Superstore].
• [54] Pisoney v. London Life Insurance Co., 2003 BCSC 1116, 19 B.C.L.R. (4th) 91 at paras. 36, 38 [Pisoney].
• [55] Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario) (Eveleigh Grievance), 2009 O.G.S.B.A. No. 50 [Eveleigh]; Canadian Union of Public Employees v. Atlantic Health Sciences Corp. (Lacasse-Mason Grievance), 2009 N.B.L.L.A. No. 3 [Lacasse-Mason]; Saskenergy Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 649 (Zielenin Grievance), [2008] S.L.A.A. No. 10 [Saskenergy]; Providence Care v. Ontario Public Service Employees Union, Local 431 (Thomas Grievance), [2008] O.L.A.A. No. 198 [Providence].
• [56] Hydro-Québec v. Syndicat des employées de techniques professionelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, 63 C.H.R.R. D/301.
• [57] Asante v. Plastcoat, A Division of Magna International Inc., [2009] O.H.R.T.D. No. 296 [Asante].
• [58] See Hutchinson v. Canada (Minister of Environment), 2003 FCA 133, 47 C.H.R.R. D/12; and Catholic District School Board of Eastern Ontario v. Ontario English Catholic Teachers' Assn. (Elderkin Grievance), [2008] O.L.A.A. No. 459 [Elderkin].